· Web viewAlthough Dr Parkin, the forensic physician who was called by the prosecution to explain the injuries in this case, acknowledged that she could not say that Mr James definitely

IN THE COUNTY COURT OF VICTORIA RevisedNot Restricted

Suitable for PublicationAT MELBOURNECRIMINAL JURISDICTION

CR 13-01825

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOEL DIAMOND

---

JUDGE: HER HONOUR JUDGE COHENWHERE HELD: MelbourneDATE OF HEARING: Trial: 21 - 25, 28 – 31 July, 1, 4 –8 August 2014

Plea: 2 October 2014DATE OF SENTENCE: 6 October 2014CASE MAY BE CITED AS: DPP v DiamondMEDIUM NEUTRAL CITATION: [2014] VCC

REASONS FOR SENTENCE---

Subject: Sentencing; intentionally causing injuryCatchwords: Jury verdict; alternative charge; offer to plead to charge;

disputed causation of injuries; offending on parole; relevant prior criminal record

Legislation Cited: Sentencing Act 1991Cases Cited: Storey’s case (1996) 89 A Crim R 519; York v R [2014] VSCA

224; R v Verdins & Ors [2007] VSCA 102 Sentence: 14 months imprisonment, CCO, 305 days PSD

---

APPEARANCES: Counsel Solicitors

For the Director of Public Prosecutions

Mr M. Fisher Office of Public Prosecutions

For the Offender Ms K. Churchill Turnbull Lawyers

VICTORIAN GOVERNMENT REPORTING SERVICE7/436 Lonsdale Street, Melbourne - Telephone 9603 9134

HER HONOUR:

1 Joel Diamond, you have been found guilty by a jury of intentionally causing

injury to Michael James. The maximum penalty for this offence is ten years'

imprisonment. You also have admitted a considerable prior criminal record to

which I shall refer later.

2 This charge arises out of events on 9 April 2013 at the Commercial Hotel

Werribee. That evening your girlfriend, Sarah Ellis, and brother, Rhys

Diamond, had been involved in both verbal and physical altercations with a

regular patron of that hotel, Mr Michael James. They had both been ordered

out of the premises. You were called by your girlfriend to come to the hotel

and arrived some 15 to 20 minutes after those events. You say that you went

there just to pick them up. They were waiting outside for you. Your girlfriend

told you that Mr James had made derogatory remarks about her. Your

brother told you he had been in a physical altercation, and he had a bleeding

lip, and one or both of them described to you or pointed out Mr James.

3 At 6.32 pm, you entered the hotel by the Bridge Street doors into the area

known as the Sports Bar, walked past Mr James who was sitting drinking at a

table against one wall, and then went into the outdoor smoking area. You

were followed there shortly afterwards by your girlfriend, and the two of you

were shown in that area on CCTV. According to the evidence of the bar

attendant, you were told to leave the premises, but she is not shown on the

camera at that stage, so I am unsure whether she entered the smoking area,

or told you to leave from the end of the bar. You then went through the door

back into the Sports Bar. Seconds later, you committed the assault on Mr

James which gives rise to this charge.

4 Your assault on Mr James was recorded on CCTV camera in that bar area,

which to a great extent speaks for itself, and the incident was also the subject

of eye-witness evidence in the trial. Mr James was sitting on a high bar chair,


drinking a glass of beer, then put it on the table and bent down and forwards

to pick up something from the floor. As his head was low, and his face

towards the floor, you approached with some speed and took a deliberate kick

at his head. Your shoe appears to have connected forcefully with his face,

causing his head to jolt a little upwards and then he fell forwards face down to

the floor where he remained motionless for almost ten seconds before he

began to move his hand and then his arm.

5 Whilst he was still lying on the floor motionless, Sarah Ellis, who had followed

you from the smoking area, also kicked Mr James' head. She had thongs on

her feet and appeared to make contact with the back of his head.

6 Even after he moved his hand and then arm, Mr James remained face down

and apparently stunned and injured on the floor for some more minutes until

assisted first to sit up on the floor and eventually assisted up onto his chair.

Long before he could sit up, you and Ms Ellis and your brother who had

entered the Sports Bar during these events, all fled through the door to Bridge

Street, followed by various bar patrons but you all left without being detained

at that stage.

7 I must assess the objective seriousness of this offence and your subjective

culpability. To do so in this case, I must make findings as to some disputed

facts. In doing this, I have taken into account all of the evidence in the trial,

and my own assessment of each piece of it. My findings must be consistent

with the jury's verdict, namely to find you not guilty of intentionally or

recklessly causing serious injury to Mr James, but guilty of intentionally

causing him injury. In approaching these findings, I have followed the

principles set out in Storey's case, (1996) 89 A Crim R 519. Specifically, to

make a finding of fact which is necessary to sentencing and is adverse to you,

I must be satisfied of that fact beyond reasonable doubt. To make a finding of

fact in your favour or which is mitigatory, I must be satisfied of that fact on the

balance of probabilities.


8 The first disputed fact is your purpose or intention in committing this offence.

9 I am satisfied on the balance of probabilities that your manner of assault on

Mr James was opportunistic and spontaneous in that on seeing his lowered

head, you saw the opportunity or perhaps could not resist the temptation, to

treat his head like a football.

10 However, from the evidence at trial, I am satisfied beyond reasonable doubt

that your purpose in entering the Commercial Hotel less than two minutes

before that assault was to seek some type of retribution against Mr James,

whether as “payback” or to “teach him a lesson” for or on behalf of your

girlfriend and your brother. The reasons for my finding of that intent are as

follows.

(i) You had no other apparent reason or purpose to enter the hotel at

all. If your only purpose for going there was to pick up your brother and

girlfriend, you did not need to enter the hotel as they were outside and

had been ordered out and not to re-enter.

(ii) Your actions on entering the hotel were not consistent with any

other purpose than staking out Mr James. When you entered, you did

not go to the bar itself, make any enquiry, order a drink or dinner, go to

play the machines, watch the races on television, or even use the

toilets. You walked past Mr James, turning your head towards him as

you did so, as shown on CCTV footage in exhibit 6. Then you went

straight to the outdoor smoking area, where you did seem to smoke a

cigarette, and soon afterwards were joined by Ms Ellis. If you had an

immediate need to smoke, you could have done that outside the hotel

without entering it at all.

(iii) You entered after first talking with your girlfriend and brother

outside, but on your own with them watching from the doorway.


(iv) Ms Ellis entered soon afterwards and followed you into the

smoking area despite having been excluded. You and she are then

seen talking for barely a minute before you head back into the Sports

Bar, and within seconds you approached and kicked Mr James.

(v) Your counsel submits that your kick was spontaneous and that you

panicked and lashed out because you knew this was the man your

brother had fought with, and you saw Mr James reaching down to the

floor and thought he might be reaching for a weapon. The panic is said

to be at least partly influenced by your having become very wary of

other people since a home invasion in 2007 in which you had been

stabbed. Not only is there no evidence to support the version that you

anticipated Mr James might be reaching down for some sort of

weapon, or to attack you, I am satisfied that that version can be

excluded from being a reasonable possibility. Your demeanour as you

walked into the hotel as seen in exhibit 6 is self-assured. You turned to

look at him as you passed, and seemed to concede here that as you

walked past him you knew he was the man that you had been told had

assaulted your brother and insulted your girlfriend. However, there is

nothing to indicate that Mr James knew you or your connection with

either the man he had earlier fought or the young woman who had

punched him. Further, you could have walked out of the hotel without

going closer than a couple of metres from Mr James as he was bent

over looking down at the floor. There is nothing in my view in that

evidence that could support a reasonable possibility that you thought

he was going to attack you.

11 For these reasons, I am satisfied that your purpose in entering the hotel was

to take some action in retribution against Mr James. I accept that the manner

of the assault was opportunistic as opposed to planned, because you could

not have known that he would lower his head for you. Nevertheless, your


action was callous, brutal and as your counsel conceded before the jury,

cowardly. In my view, the circumstances put it quite high in the middle range

of seriousness for offences of intentionally causing injury. It is saved from

being at the high end because it did not involve a weapon. I also take into

account that it was a single strike rather than repeated blows, but a single

blow can be deadly in some circumstances, and there have recently even

been changes in the law relating to sentencing when a single blow causes

death. The result here was not nearly as serious as that, but a deliberate and

apparently forceful kick at a man's vulnerably lowered head, connecting with

his face, must be considered serious.

12 Mr Diamond, is there something wrong? Your head is down. I do not mind if

you are not looking at me but are you able to concentrate on what I am

saying?

13 OFFENDER: Yes, Your Honour.

14 MS CHURCHILL: Would Your Honour like me to approach my client?

15 HER HONOUR: Just to check, yes please.

16 MS CHURCHILL: Thank you, Your Honour. We're all right to continue, thank

you, Your Honour.

17 HER HONOUR: I continue with the findings and matters I am taking into

account in assessing the seriousness of the offending and the culpability of Mr

Diamond.

18 An aggravating factor is that you were on parole at the time. You had been

released less than three months earlier from a sentence for a variety of

offences, including a charge of recklessly cause serious injury. Several

offences breached a suspended sentence previously imposed, also for at

least one offence involving violence or threat of it. Knowing that you were on

parole ought to have been a very strong reason to pick up your brother and


girlfriend and drive away. You ought to have realised that you should avoid

bringing about situations where you might be tempted to act with violence.

This was not a situation where you acted in the heat of the moment. You

were not present for the earlier events, and there was nothing that had

occurred between you and Mr James to provoke you. You could easily have

avoided any such confrontation by simply not entering the hotel. Any insult to

your girlfriend or fight involving your brother was well over before you arrived

and they were safely, if unhappily, outside.

19 Next there remains dispute, as there was during the trial, as to which injuries

your assault caused to Mr James and the extent of those injuries. Mr James

was taken by ambulance to hospital after this incident, where several injuries

to his face were found including those you were alleged to have caused, and

he was kept overnight. However, overnight his condition deteriorated and

some very serious abdominal injuries were found requiring surgery and

leading to his being placed in an induced coma for some days. It was

conceded that your kick was unlikely to have caused the abdominal injuries or

the necessity for the coma, so none of those facts were made known to the

jury.

20 The prosecution case at trial was that you caused him the following injuries-

three facial fractures with which he was diagnosed, namely to the right inferior

orbit (that is the base of the orbit where the eye sits), to the right medial

pterygoid (that is a bone that is part of the skull,)and a left side nasal fracture,

that you also caused him bruising and swelling around the right eye,

(colloquially speaking a "black eye"), a right sub-conjunctival haemorrhage

(meaning bleeding in the white of his right eye) and unconsciousness.

21 Although it is conceded on your behalf that an injury of some nature was

caused by your kick, it is argued that the court cannot be satisfied beyond

reasonable doubt which injury or injuries you caused because Mr James had

been in a physical altercation with your brother about 20 minutes earlier, when


punched by your brother and wrestling on the floor with him. Then he had

been punched in the face once or twice by your girlfriend, and, further, after

your kick she also kicked him in the head.

22 I am satisfied beyond reasonable doubt that your kick knocked Mr James

unconscious, albeit for no more than ten seconds. I conclude this partly from

my visual impression from the CCTV footage as what appears to be a forceful

kick causing his head to jerk, and then he fell forwards to the floor without any

protective action. That was also the impression - that is that he was knocked

unconscious by your kick - of each of the witnesses who saw it occur. Mr

Craig Murphy, the first to be asked about this, gave his reasons. He said the

man looked like he was knocked out because he just fell without bracing

himself and his chair went from under him and he just slumped and went on

the floor and he was not moving. Although Dr Parkin, the forensic physician

who was called by the prosecution to explain the injuries in this case,

acknowledged that she could not say that Mr James definitely lost

consciousness at that stage, as she was not present and did not examine him

at the time, her opinion was - after watching the CCTV footage - that he was

unconscious for some seconds. She based that on the apparent force of the

kick, including the pendulum motion, and because Mr James' fall was what

she called a "dead fall", that is without bracing himself with his arms or hands,

and flat onto his face without trying to turn his face away.

23 As Ms Ellis followed your kick with one of her own to Mr James' head, I cannot

say whether it also contributed to the duration of his loss of consciousness,

but as I have said it was about ten seconds going by the timing on the video

after he landed on the floor from your kick before he first moved at all and that

was moving his hand.

24 I am also satisfied to the requisite standard of beyond reasonable doubt, that

it was your kick which caused two of the facial fractures he suffered - the right

sub-orbital fracture, and the fracture to the pterygoid plate. I base these


findings on the evidence of Dr Parkin that they would have required

considerable force, and from her experience in emergency departments of

hospitals, while punches to the face can often cause a broken nose, it would

be very unusual for punches to be forceful enough to cause either of these

other two fractures. I have taken into account that in the earlier struggle with

Rhys Diamond he appears on the CCTV footage to have held Mr James while

delivering at least two punches to the right side of Mr James' head, and that

some of what occurred between them was not caught on camera, and that

there was a degree of struggle on the floor in which it is impossible for me to

make out what exactly occurred.

25 I have taken into account that after that incident, Mr James had blood trickling

down the left side of his neck and face as shown on the CCTV footage. I

have also taken into account the punches of Ms Ellis. All witnesses who saw

those described the second punch as forceful, some said both were, but two

witnesses including Ms Marni Richards who was standing nearest, said the

first missed and another witness said that it barely made contact. Ms Richards

said the second punch hit him right in the nose. On the video he is seen

dabbing at either his lip or nose after Ms Ellis' punches, however those

punches do not appear to be forceful enough to cause the two fractures that

Dr Parkin described as likely to have required more force than a punch to the

face. Also, Mr James, although clearly still dabbing at his face whilst sitting on

his chair before your entry onto the scene, looked reasonably steady and not

as if further facial fractures had been caused.

26 Finally Ms Ellis' subsequent kick to Mr James' head after yours, whilst also

cowardly and a very nasty act by her, does not appear to make contact to his

face, or with sufficient force to the back of his head as to fracture the sub-

orbital bone or the pterygoid plate.

27 In relation to the nasal fracture - the broken nose, - while I think it was

probably caused by your kick, there is evidence of Ms Ellis' second punch


connecting forcefully to Mr James' nose, evidence of some bleeding after that

which could well have been from the nose, and I cannot exclude beyond

reasonable doubt that it was caused before your kick. Similarly with the black

eye, although not visible before your kick as shown on the video, I cannot

exclude as being reasonably possible that it was caused by either the fight

with your brother, or girlfriend's earlier punches, so I cannot exclude beyond

reasonable doubt that you did not cause it with your kick.

28 I have reached these findings as to which injuries you caused taking into

account the jury's verdicts, which in my view are still consistent with the jury

either not considering that in combination the two fractures and

unconsciousness did not amount to a serious injury. There was no evidence

of consequences after discharge from hospital, and the unconsciousness did

not last more than seconds. Alternatively, the jury might not have been

satisfied that you intended to cause serious injury, as opposed to intending to

cause simple injury.

29 Finally, before leaving issues arising as to the overall culpability and

seriousness of your offending on this occasion, I note that there were Victim

Impact Statements tendered from Mr James himself and from his sister and

mother. At my urging, Mr Fisher for the prosecution marked those parts to be

excluded as not relating to your assault on Mr James. The Victim Impact

Statements indicate very substantial and so far long-lasting consequences for

Mr James as a result of the overall injuries he suffered that evening, and for

which he was treated in hospital over the following days. However, it is not

possible in my view to distinguish what were consequences just of the injures

that I have found that you caused. Moreover, the statements were prepared

for the plea hearing of Ms Ellis early this year, and as such could appropriately

take into account the injuries she inflicted beyond your kick.

30 Having been referred to the Court of Appeal decision of York v The Queen

published since these statements were written, I do not consider that I can


distinguish from those statements what consequences can be specifically

related to your assault. That is not to say that I doubt that there have been

very serious consequences to both his physical and mental health for Mr

James as a result of the overall injuries he suffered that evening. I consider it

likely that the injuries you caused him have contributed to some extent to his

overall cognitive difficulties and psychological reaction to those overall events.

However, I cannot distinguish what resulted from your assault in isolation so I

have not taken any of the specific matters raised in those statements into

account.

31 From all I have said so far, it follows that I regard both the objective

seriousness of your offence, and your culpability, as in at least the middle

level of seriousness for the offence of intentionally cause injury. It calls for a

sentence which adequately denounces and punishes for such behaviour, and

which provides general deterrence to others considering taking violent action

as some sort of payback, that they can expect a stern sentence as

punishment.

32 The kicking of a person's head in any circumstances let alone when the

person cannot see it coming, and is in a very vulnerable position, is conduct

which the community cannot tolerate and which must attract serious enough

punishment to adequately denounce it and to deter others from attempting it.

33 Apart from your being on parole, I must also take into account that you have a

prior criminal history. Commencing with driving offences in 2008, you

appeared in Magistrates' Courts once in 2011 and once in 2012 when

numerous charges of varying nature were consolidated. Of particular

relevance was a charge of reckless conduct endangering serious injury arising

from an incident in May 2010 when late at night you drove at a woman who

was leaving a police station after making a statement about an incident

involving your girlfriend, having not long before made threats to kill the

woman's partner in his car with a young child while banging against the car


window.

34 In 2012, you were sentenced for 18 offences arising out of several incidents,

mainly in March and April 2012, but including a charge of recklessly causing

serious injury in January 2010. On that occasion, in company with your

brother Rhys, you had assaulted a man causing him facial injuries, attempting

to recover an alleged debt.

35 These previous offences are relevant as they involve displays of intimidatory

violence by you. They indicate that your assault of Mr James was not an

isolated action totally out of character for you.

36 You had been placed on a Community-Based Order together with a

suspended sentence in July 2011, but breached that by failures to comply as

well as further offending. In October 2012, you were sentenced in total

including three months of a restored suspended sentence, to 15 months'

imprisonment with a non-parole period of nine months. There was a

significant amount of presentence detention, and it was from that sentence

that you had been released on parole a couple of months before the assault

against Mr James.

37 Apparently a Community-Based Order, an earlier suspended sentence, and

then a term of imprisonment and the grant of parole, had not sufficiently

impressed on you the need to stay out of trouble, and in particular to restrain

yourself in circumstances where you might be tempted to violence. This

means that specific deterrence, that is to try to deter you from further

offending of this nature in future, must also be a significant factor in my

sentencing of you.

38 I turn now to your personal circumstances. You are now aged 30 and were 29

at the time of this offence. You have one sibling, your younger brother Rhys.

39 Apparently your father left the family when you were very young, and despite


the support and stability of your mother who was a primary school teacher

throughout your childhood, you misbehaved at school, were expelled from

several schools, including primary school. If this was a response to upset and

a sense of abandonment by your father, your behaviour did not improve when

you were sent in your mid-teens to live with him. You abandoned school in

mid teenage until your mother made you return to Year 11 when you returned

to live with her.

40 You told a psychologist, Ms Matthews, who assessed you for your court

appearances in 2011 and 2012, that your father introduced you to cannabis

use when you were 13, and that you used it daily from age 15 until Ms

Matthews saw you. Her 2011 report also sets out extensive use of various

amphetamines, including methylamphetamine and ecstasy. In August 2012,

she reports that you told her that prior to going into custody, you had been

using half a gram of methylamphetamine a day, and a gram or two of

marijuana a day.

41 Your counsel submitted that you had no history of drug dependence, but this

seems to be habitual use at these times and together with some of your prior

convictions, that include possession and trafficking of cannabis and

amphetamines, I take you to have been involved in considerable drug use

over many years. I accept that you ceased using drugs while in prison, and

negative urine screen results in August 2013 and April 2014 confirm this. I

also accept that while living with your mother since being granted bail, she

would not tolerate you using drugs in her home.

42 There is no suggestion that use of drugs was in any way connected with your

commission of the offence for which I sentence you. Overall it will be your

own decision whether to revert in future to drug abuse. You clearly can

abstain if you wish to do so. In that sense, your rehabilitation will not be

impeded by drug addiction unless you choose to revert to use or trafficking in

such illegal drugs.


43 You do have a sustained work history. After leaving school you did an

apprenticeship as a brick layer, and seem to have maintained employment or

work in that industry. You worked in the building industry and I have read two

references - references from two of your former employers, one of whom

appears to know nothing of your offending but speaks well of you, and the

other who does know of the offending and has recently re-employed you since

your release on bail. Apparently you left their previous employment and

started your own business in about 2006 or so. I accept that you did maintain

work for most of your adult years, until sentenced to imprisonment. This is an

indication that if you decide to turn over a new leaf, you will have the ability to

work, earn income and establish a responsible and stable lifestyle for yourself

in the future. Again, that is a decision for you to make.

44 As I have said, you were assessed by psychologist Ms Matthews before your

court appearances in 2011 and 2012. Her reports set out your personal

history, some of which I have already indicated including feelings of

abandonment and some disruption in your childhood to do with your father's

absence, although your mother maintained a stable influence for you and your

brother.

45 I have also outlined the history that Ms Matthew outlines of your drug use over

the years. Ms Matthews also reported in 2011 that you had suffered injury

and been traumatised by a home invasion in 2007 in which you were stabbed,

requiring treatment in hospital but which you did not wish to report to police.

Further, in her 2012 report, she outlines your account of having a close friend

commit suicide in circumstances that you saw his body, and that you had

found the whole event extremely traumatic and that it continued to invade your

thoughts. Her opinion was that you satisfied some but not all of the diagnostic

criteria for post-traumatic stress disorder at that stage. She expressed the

view in 2011 that you could find imprisonment more difficult or onerous due to

that condition. Another upsetting event which occurred when you were in


custody in 2012 before the Magistrates' Court sentence was that your house

was the subject of an arson attack, and in that event your dog died.

46 These are all events which had occurred and affected you emotionally before

you were sentenced to imprisonment in October 2012, and also before you

were released on parole and committed the assault for which I am now

sentencing you. It is not suggested in this case that any symptoms of post-

traumatic stress disorder, if indeed you were still experiencing them when you

kicked Mr James, could operate to moderate sentencing factors of general or

specific deterrence, and I have already indicated that I exclude as a

reasonable possibility that your culpability was lower because past trauma led

you to act as if you were expecting Mr James to attack you.

47 It was submitted by your counsel that I should take into account what is

referred to as the fifth head of the Verdins principles - that you would find

imprisonment more onerous than someone without symptoms of PTSD. Since

Ms Matthews gave that opinion in 2011, you committed several more offences

for which you were imprisoned in 2012, and in total have spent 26 months in

prison since then. I do not know if there are any such symptoms still being

experienced, and there is no up to date psychological report as apparently

funding was not available for it although an adjournment was given for that

purpose. I do not regard the opinion of Ms Matthews on this issue, that is that

you would find the serving of time in prison more onerous, as carrying much

weight at this stage given the intervening events.

48 Although you were convicted after a trial, I am told that you offered to plead

guilty to this charge on the second day of trial and before empanelment of any

jury, and even more significantly that last December - that is more than nine

months before the trial started - you offered to plead guilty to a more serious

charge of recklessly causing serious injury to Mr James. These offers were

not accepted by the prosecution, but you are entitled to the same degree of

leniency for the utilitarian value of avoiding the cost of a disputed trial as if the


offers had been accepted and the trial avoided. That would also have spared

a number of witnesses not only the inconvenience but also the stress of being

cross-examined in the trial.

49 Your offers were not at the first available opportunity, as both were well after a

disputed committal hearing at which various witnesses were cross-examined,

but I note that Mr James was not, because just as he could not give evidence

at the trial because he has no memory of the events, he was not called at the

committal hearing. Nevertheless, there would have been considerable utility if

the offers to plead guilty had been accepted, in particular the early one, and I

give you credit in the sentence as if you had pleaded guilty on that basis.

50 However, it does not seem to me that I can infer much genuine remorse for

your actions from the earlier offers to plead guilty. That is partly because the

keeping live of issues in the trial of both causation of serious injury, and

intention to cause injury or serious injury, reflect that your proposed

acceptance of responsibility for your actions through such plea offers was not

unequivocal.

51 I have also taken into account the sentence imposed on your co-offender

Sarah Ellis. She pleaded guilty to a single charge of recklessly causing

serious injury to Michael James, and was sentenced to two years and six

months imprisonment, with a non-parole period of 15 months. I must consider

whether your positions are comparable such that a different sentence from

hers would entitle either of you to a justifiable sense of grievance, if the same

sentence were not imposed on both of you.

52 Her role in injuring Mr James was more extensive, in that she accepted

involvement not only in acting together with you in your kicking of Mr James'

head, but also for earlier approaching him twice and punching, or attempting

to punch him in the face, and also for her kick to his head seconds after he fell

to the floor after your kick.


53 Also she accepted that these actions in combination have caused him serious

injury, and the charge she admitted was a more serious one than the one on

which the jury ultimately found you guilty. However, she was 19 years old at

the time, with no prior convictions, compared with your being ten years older,

having a prior criminal history including for violence, and in particular your

being on parole at the time.

54 There are sufficient differences between your two situations to justify different

sentences, but there are also in my view some factors which balance each

other out.

55 I must also take into account the total time you will have spent in custody for

this and the other offending over a similar period and take into account that

although you are not a youthful offender, you are still at an age where a

sentence should not be so crushing as to discourage you from attempting

rehabilitation on your release from prison.

56 You spent nine months in custody for a consolidation of multiple offences

which occured over a period of at least two years up to April 2012. You were

released only a couple of months before committing the assault on Mr James,

and then spent another 16 months in prison having had the remaining six

months of your earlier sentence called in by the parole board, and then about

ten more months awaiting trial on the charge for which I sentence you. That of

course will count towards the sentence I impose. You have therefore spent

more than two years of the last two and half years in prison. The six months

required by the Parole Board was related to the present charge as this offence

breached your parole, but it was not a sentence imposed to punish you for this

offence - it was the balance of the sentences imposed at Sunshine

Magistrates' Court for multiple offences and for breaches of sentences for

other prior offences.

57 Nevertheless to take into account the total time you have been in prison over


the last two and a half years, I have moderated both the form of sentence and

term of imprisonment I intend to impose.

58 Ms Churchill on your behalf urged me to impose a straight sentence of no

more than 305 days which is your pre-sentence detention on this charge. As

an alternative, she submitted that if 305 days imprisonment were not

sufficient, then a Community Corrections Order could be imposed in addition

to that period of imprisonment.

59 The prosecution urged that a longer term of imprisonment be imposed with a

minimum term set before you would be eligible for parole, allowing for the

sanction and supervision of parole. Mr Fisher submitted that 305 days as a

minimum term would not be outside an appropriate range but at the lowest

end. To the extent that that might be interpreted as suggesting a range for the

term of imprisonment, I am not to take it into account.

60 Due to an amendment to the Sentencing Act that came into account last

Monday, I have the power to impose a Community Corrections Order in

addition to a term of imprisonment of up to two years. To cover this option I

requested a pre-sentence report as to your suitability for a Community

Corrections Order. As I have already canvassed with your counsel, you were

reported as unsuitable owing to you having breached a Community-Based

Order imposed in 2011, both by non-compliance and by further offending, and

also having breached parole by this offending, all being relatively recent non-

compliance with community corrections requirements.

61 As to your non-compliance with the Community-Based Order, you told Ms

Mathews in August 2012 and the officer assessing you last week, that you

were affected by the death at the time of a friend. You told Ms Matthews that

you saw this friend who had hanged himself. I am not in a position to assess

whether having to discuss this with community corrections officers was the

reason that you ceased to comply with that order. I accept that such an


experience would have been very distressing and also unsettling. I am not

convinced that it has a connection with the commission of the offence for

which I sentence you, and it was some time ago.

62 I have seen certificates showing that whilst in custody, both in 2012 and after

your parole was breached, you have undertaken a number of courses to equip

you with further skills, and I am told you also did that to keep yourself

occupied. I am told that you have abstained from drugs while in prison and

accept from the negative screens that that is confirmed.

63 Since being released on bail in the last two months, you have obtained

employment with a former employer as a bricklayer, and while living with your

mother, have apparently remained drug free and stayed out of trouble. It is

difficult to know whether you have in fact committed yourself to reform your

previous ways. That will be in your own control, but as I have said, with work

available to you and no general physical or mental health impediments, and

drug use being entirely in your own hands, your rehabilitation is quite possible

if you choose to build a responsible life for yourself.

64 Taking into account all of the matters that I have outlined, I am of the view that

only a term of imprisonment of longer than that which you have already

served would be appropriate. I say that notwithstanding the urging of your

counsel and the submission on behalf of the prosecution that the time already

served would be, albeit at the lowest end, in a range for an appropriate non-

parole period.

65 I have considered imposing a straight sentence which once completed would

mean your immediate release with no ongoing supervision by community

corrections. Given your past history, I do not consider that to be in the

community's interests, and to an extent not in yours. In the past you were not

compliant with community corrections or indeed parole conditions in that you

committed this offence whilst on parole. In my view you do need some


supervision on release from imprisonment, either through the parole system or

under a Community Corrections Order.

66 I have decided in all the circumstances, and notwithstanding the assessment

report I obtained, that it would be appropriate in your case to impose a term of

imprisonment followed by a Community Corrections Order. That guarantees

your release from imprisonment when the time I impose has been served but

you would immediately commence a Community Corrections Order and its

supervision.

67 Would you stand up now please, Mr Diamond. Mr Diamond, are you

concentrating? I am about to impose sentence. I am not sure if your client

has actually been awake.

68 MS CHURCHILL: May I approach, Your Honour?

69 HER HONOUR: Yes.

70 MS CHURCHILL: Thank you, Your Honour.

71 HER HONOUR: Ms Churchill, I am not sure if - I am not expecting a medical

assessment by you but I am not sure if your client - his head has been down

throughout. I do not expect him to have to look at me, but I am not sure

whether he has been following what has been said. Is he in a position to hear

and understand the sentence?

72 MS CHURCHILL: I have asked him if he is all right. Certainly I am not a

doctor. He does not look well, he looks pale but I suspect that is in

anticipation of what is coming.

73 HER HONOUR: Yes. I will proceed with the sentence then. If there is some

medication affecting him, it is better that it be known than not known but I am

certainly not in a position to understand whether it is being unwell or is

something else. I understand it is a stressful circumstance to have to go


through to be sentenced and given that he realises now what is coming.

74 MS CHURCHILL: Yes, Your Honour. I think that is what it is but could I just

clarify with him if he's on any medication, Your Honour.

75 HER HONOUR: Yes.

76 MS CHURCHILL: Your Honour, he is prescribed Avanza. He does not have

it with him, it is at his mum's house but he is prescribed Avanza so perhaps at

the end when we discuss custody management, Your Honour, he can be seen

by somebody.

77 HER HONOUR: Right.

78 Joel Diamond, on the charge of intentionally causing injury to Michael James,

you are convicted and sentenced to a term of imprisonment of 14 months. I

declare that 305 days of pre-sentence detention is to be recorded as reckoned

served and that will be deducted administratively and recorded in the court

records.

79 In addition, on the same charge, I impose a Community Corrections Order to

commence immediately after that term is completed, to last for 12 months with

conditions of supervision, of a very small amount of unpaid community work of

25 hours, and that you be assessed and referred for relevant programs

suitable to avoid re-offending. I have in mind that they are anger

management or men's behavioural change programs but it is ultimately up to

community corrections whether they assess you as suitable for and refer you

for those.

80 I must explain the terms and implications of the Community Corrections

Order. The term of imprisonment does not need explanation but it has a finite

end date. The Community Corrections Order includes the conditions I have

just indicated of supervision, of unpaid community work, and of assessment

for and referral to relevant programs to try to assist with avoiding you re-


offending.

81 In addition, it has all of the usual terms of a Community Corrections Order. I

know they were explained to you last week, but they are in summary that you

must report within two clear days, that will be after your release from prison, to

a community corrections office; that you must obey all lawful instructions and

directions of community corrections officers; that you must report to

community corrections officers within two clear working days any change of

address or of employment; that you must not leave the State without prior

permission of community corrections officers and you must submit to visits

from community corrections officers if they are required. Most importantly of

course is that during the period of the Community Corrections Order, that is

12 months from the date of your release from prison, you must not commit

any other offence punishable by imprisonment in Victoria. That does not

mean that it has to be an offence for which you would necessarily receive a

term of imprisonment but if it is an offence for which a court could impose

imprisonment, it would breach the Community Corrections Order and that

includes most of the offences of which you have been convicted over the

years, including trafficking of drugs, driving whilst disqualified, all of the

offences of violence for which you have been convicted in the past, and are

now being convicted.

82 If you were to breach the Community Corrections Order either by failing to

comply or by further offending, you could expect to be brought back before me

and to be resentenced in respect of this offence. Do you understand those

terms and conditions? You are nodding, so that is a yes?


84 HER HONOUR: Do you agree that you would comply with such an order if it

is imposed? Is that a yes?



86 HER HONOUR: All right. In addition I make an order for a forensic sample to

be taken from you limited to a scraping from the mouth so that will enable your

DNA details to be placed on the state's data base. That was opposed, but my

reasons for making the order are the seriousness of the circumstances of the

offence, your prior criminal history and because in light of both of those

together, I consider it to be in the public interest. You can take a seat for a

few minutes please.

87 All right. Now, a Community Corrections Order will need to be produced and

signed as part of that. I am prepared to make a custody note if that is sought.

Your client would have medical records.

88 MS CHURCHILL: Certainly.

89 HER HONOUR: From his previous time in custody up till two months ago. I

do not think that there is anything to be gained by adding the now out of date

reports of Ms Mathews but if you want to add - I don't have anything from a

GP?

90 MS CHURCHILL: No, Your Honour. Perhaps if it could simply be noted

that - - -

91 HER HONOUR: He is believed to be taking Avanza, taking prescribed - - -

92 MS CHURCHILL: Taking Avanza and perhaps he could be seen by the nurse

or the doctor.

93 HER HONOUR: Yes, I think that happens automatically.

94 MS CHURCHILL: I am not sure, Your Honour, if it happens automatically or

whether if Your Honour's notes on the remand warrant - - -

95 HER HONOUR: I am prepared for there to be a custody order to that effect.

96 MS CHURCHILL: Thank you.


97 HER HONOUR: But my understanding is on this, that soon after arrival there

is an examination.

98 MS CHURCHILL: Yes, Your Honour.

99 HER HONOUR: All right. We will have to have this order prepared, thank

you. I will have that shown to counsel and if it's - - -

100 MS CHURCHILL: It looks accurate, Your Honour.

101 HER HONOUR: All right. I will have my associate take it for your client to

sign and then I will sign it.

102 MS CHURCHILL: Thank you, Your Honour. Would Your Honour mind if I

approach as well.

103 HER HONOUR: If you would like to approach as well, that's fine.

104 MS CHURCHILL: Thank you, Your Honour.

105 HER HONOUR: I have now signed that Community Corrections Order and

there will be a copy made available for each party. Mr Diamond, I have also

signed the order I said I would make in respect of the taking of your DNA

sample. I have restricted that to a scraping from the mouth rather than blood

sample but I warn you, as I must, that an authorised officer or member of the

Police Force can use reasonable force to enable that forensic procedure to be

taken if you resist. It is just a swab on the inside of the mouth and if you do

not resist, it should not require very long at all or any intrusion. But force,

reasonable force may be used if you try to resist. All right. I have signed

copies of that order also. Is there anything I have not covered?

106 MR FISHER: No, Your Honour, there's not.

107 HER HONOUR: All right. Can Mr Diamond be taken from the court, please.

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Documents

· Web viewAlthough Dr Parkin, the forensic physician who was called by the prosecution to explain the injuries in this case, acknowledged that she could not say that Mr James definitely